Lydia Foy

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Lydia Foy was born male in the Republic of Ireland on 23 June 1947. After marrying and fathering two children, she had sex reassignment surgery and began a 12 year legal battle to assert her identity as a woman on her birth certificate. This resulted in a declaration that the Law of the Republic of Ireland was incompatible with the European Convention on Human Rights.

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Lydia Annice Foy of Páirc Bhríde, Athy, Co Kildare is a retired dentist. She was born in a private nursing home in the Irish Midlands,[1][2] and at birth was officially registered as a male with the Christian names Donal Mark.[3] Foy was raised as a male,[4] with five brothers and one sister.[3]

From early childhood she was conscious of a feeling of ‘femininity’. This continued throughout boarding school at Clongowes Wood College from 1960 to 1965. Having obtained her Leaving Certificate, she started pre-med studies at University College Dublin, but changed to dentistry a year later. She graduated with a Bachelors degree in Dental Surgery in 1971, and began to practice as a dentist.[3]

In 1975, through a music society where she lived in Athlone,[2] she met Anne Naughton - a secretary from Clara, County Offaly, who was eight years her junior. They got engaged, and married at the Church of Saints Peter and Paul in Horseleap[2] on 28 September 1977.[3] They had two children, one born on 16 August 1978, and the other on 18 October 1980.[3]

In the 1980s Foy began to suffer physical and psychological problems, which worsened in August and September 1989, when she suffered a total collapse. She had psychiatric counseling,[5] was diagnosed a core transsexual and was prescribed a hormone treatment. She attended two further psychiatrists in England who diagnosed her as suffering from Gender Dysphoria.[3]

Foy began a process of transitioning from male to female, with electrolysis, breast augmentation surgery, operations on her nose and Adams apple[3] and voice surgery.[5] On 25 July 1992, she underwent full, irreversible sex reassignment surgery[3] in Brighton,[2] England. This involved the removal of the external and internal genitalia with which she was born and the surgical creation of the internal and external female genitalia.[5] The Irish Eastern Health Board paid £3,000 (Pound sterling) towards the cost of the procedure.[5]

Subsequently Foy lived entirely as a female. She had left the family home in 1990, and a judicial separation was granted on 13 December 1991. While Foy was at first granted conditional access to the children, who lived in custody of their mother, in May 1994 the Circuit Court prohibited all access.[3]

While Foy, who legally changed her Christian names in November 1993, was able to obtain passport, driving license, medical card, and polling card in the new name, her request to amend the sex on her birth certificate was refused.[5][6]

Foy began legal proceedings in April 1997,[7] to challenge the refusal of the Registrar General to issue her with a new birth certificate. Unemployed, Foy was represented in the action by Free Legal Advice Centres. The basis of her action was a contention that the Births and Deaths Registration (Ireland) Act 1863 did not justify the practice of using solely biological indicators existing at the time of birth to determine sex for the purposes of registration.[6] According to Foy, she had been born a "congenitally disabled woman" and the error recording her sex on her birth certificate was not only embarrassing to her but also could interfere with her constitutional rights, as she would be unable to ever choose to marry a man.[6]

The case reached the High Court in October 2000. Foy's former wife and their daughters contested her plea, claiming that it could have "an adverse effect on their succession and other rights."[1]

Judgment was reserved for nearly two years until 9 July 2002 when Mr Justice Liam McKechnie rejected Lydia Foy’s challenge, stating that Foy had been born male based on medical and scientific evidence and that accordingly the registration could not be changed.[1][8][9]

Just two days after the decision against Foy, the European Court of Human Rights in Strasbourg heard a similar case. Christine Goodwin, a British transsexual, had claimed that the UK's refusal to allow her to amend her birth certificate and to marry as a female violated the European Convention on Human Rights.[10] The Court declared that the UK Government had violated Articles 8 and 12 of the convention.[11] In response, Britain passed the Gender Recognition Act 2004, providing for legal recognition of transgendered persons in their new or acquired gender, and for the issuing of new birth certificates reflecting that gender.[7]

In 2005, the Foy case was brought back before the High Court by the Irish Supreme Court for further consideration.[12] On Friday, October 19, 2007 the court found Ireland in violation of the European Convention on Human Rights, and decided to issue the first declaration of the incompatibility between Irish and European law. According to Justice Liam McKechnie, provisions of article 8 of the Convention protecting Foy's right to respect for private life had been violated when the State failed "to provide for 'meaningful recognition' of her female identity",[13] and Taoiseach Bertie Ahern and Houses of the Oireachtas should consider adopting the British system.

Although the issues have been raised in parliamentary debate,[14][15] no ruling has been made. The declaration of incompatibility is not unconstitutional, but does place the government in a dilemma, and the need to reconcile Irish and European legislation.[16]

On 5 January 2009, Thomas Hammarberg, the Human Rights Commissioner of the Council of Europe, stated with respect to the transgender community and specifically Foy that "There is no excuse for not immediately granting this community their full and unconditional human rights."[17]